Washington, D.C. – The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) suit against the Department of Justice (DOJ), demanding the release of a secret legal memo used to justify FBI access to Americans’ telephone records without any legal process or oversight.

A report released last year by the DOJ’s own Inspector General revealed how the FBI, in defending its past violations of the Electronic Privacy Communications Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records. According to the report, the DOJ’s Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI’s theory. That legal opinion is the target of the FOIA lawsuit filed Thursday.

The Inspector General’s report is heavily redacted, concealing which part of the surveillance statutes the FBI and OLC are relying on to reach their dangerous conclusion and to what types of records this new purported exception to the law applies. However, the report does show that the Inspector General had grave concerns about the FBI’s interpretation of the law.

“Even officials within the Justice Department itself are concerned that the FBI’s secret legal theory jeopardizes privacy and government accountability, especially considering the FBI’s demonstrated history of abusing surveillance law,” said EFF Senior Staff Attorney Kevin Bankston. “Secret law has no place in our democracy. Congress can’t even consider closing this dangerous surveillance loophole until we understand the FBI’s legal argument, yet the Department of Justice is still hiding it from Congress and the public.”

Earlier this year, the DOJ denied a FOIA request from a journalist seeking disclosure of the secret OLC opinion and in doing so revealed — perhaps inadvertently — the specific portion of the law on which the FBI’s aggressive legal theory relies. Based on its analysis of that particular ECPA provision, 18 U.S.C. 2511(2)(f), EFF fears that the FBI and OLC have wrongly concluded that national security investigators are free to obtain records of Americans’ international communications without first obtaining a subpoena or any other legal process. With this additional information about the contents of the OLC opinion, EFF filed its own FOIA request, but the DOJ has continued to stall its release.

A d v e r t i s e m e n t

“Congress is currently debating how to reform surveillance statutes like the PATRIOT Act and the Electronic Communications Privacy Act,” said EFF Senior Counsel David Sobel. “If the FBI is claiming that it has the right to secret, unchecked access to Americans’ communications records, Congress and the American public need to know that now.”